Update [2005-8-22 18:50:35 by Armando]: From the diaries by Armando.
The first, and most important, thing everyone needs to understand about the nomination of John Roberts to the Supreme Court is that it is the single biggest domestic issue that will face the country not just now, but for the rest of Bush's presidency. Everyone who reads this blog has grown up assuming (because no one ever said otherwise in high school civics) that the New Deal was constitutional, that Congress could pass sweeping civil rights laws, and that the federal judiciary is a protector of civil rights. Most of you have grown up assuming that such a thing as the right to privacy is a part of the United States Constitution. Indeed, even most of the readers of this blog, and certainly most Americans, have come to assume that the Constitutional order this country has known since the 1930s is more or less a given, with some issues still to be decided but certainly with the fundamentals settled.
John Roberts could change all that. Whatever any media outlet or conservative pundit has to say about Judge Roberts being "kind," "brilliant," "family man," he's the Trojan horse that Bush wants to send to the Supreme Court to dismantle seventy years of jurisprudence. John Roberts on the Supreme Court will fundamentally change the nature of the United States. That is why he is the issue, and why we must all do whatever we can to keep him off of the Court. Why? Hopefully, the rest of this diary will provide the answer.
First, our starting point: John Roberts is purportedly an originalist and a textualist. For many here, he already shapes up as a disastrous Justice based on that description alone. I disagree, being that when it comes to constitutional interpretation, I am a textualist and (when the text is vague) an originalist. "Textualist" and "originalist" need not be code words for "wingnut." But
even I think Roberts is a disaster. Because in his case, his supposed interpretive style is merely a code. He is not a brilliant jurist, simply a clever one who Bush knows will use the trappings of constitutional interpretation to advance the agenda of the right wing. Roberts is cuddly, friendly version of Robert Bork. To illustrate the point, I will proceed by example, demonstrating why Roberts is neither a serious textualist nor a serious originalist, but merely a
very serious right-wing hack.
Hamden v. Rumsfeld
To be fair, Roberts did not write this opinion. But he joined it in full, without writing a separate concurrence, so it is fair to assume that he agrees with it. Which is so much the worse for Roberts, because the Hamden opinion is about as absurd a piece of tripe as one will ever see entered into the Federal Reporter. For those who are not aware of the issue in Hamden, the primary question before the D.C. Circuit was whether a Guantanamo prisoner whose status as an enemy combatant had been affirmed by an independent tribunal could be tried by a military tribunal without a prior determination that he was not a prisoner of war under the Geneva Conventions. There are two aspects of the panel's holding on which I want to focus. First, its holding that the Geneva Conventions do not supply any rights enforceable against the United States in federal court (which would have been enough to decide the case). Second, and probably most important as far as Roberts' qualifications to sit on the Court, the panel's pernicious dicta which, as Yale Law Professor Robert Gordon wrote over at TPM Café, went out of its way
to confirm every power the administration claimed for the executive, including the authority to set up military tribunals to try people he designates as "enemy combatants", with no protections of due process, exempt from the protections of the Geneva conventions, military justice, and the Constitution.
As for the panel's holding on the Geneva Conventions, its "reasoning" was that "treaties...do not create judicially enforceable individual rights." Which ought to seem bizarre to a thoroughgoing textualist or originalist, given that treaties, like the Constitution and federal laws (both of which inarguably create judicially enforceable individual rights), are "the supreme Law of the Land."
To support its counterintuitive result, the D.C. Circuit relied on what it generously termed "an alternative holding" of the Supreme Court in the 1950 case of Johnson v. Eisentrager. The Eisentrager case itself turned on the fact that the German prisoners who applied for a writ of habeas corpus were at no time within the jurisdiction of any U.S. court (nor, at the time they applied for the writ, in the custody of the United States). The "alternative holding" actually appears as a throwaway in footnote 14, in which the Supreme Court noted that, under the "obvious scheme" of the Geneva Conventions,
Rights of alien enemies are vindicated under it only through protests and intervention of protecting powers as the rights of our citizens against foreign governments are vindicated only by Presidential intervention.
Which is all well and good, but which has very little to do with the right of a prisoner at Guantanamo to have the Geneva Conventions applied to the actions of the United States. See, the problem is that Eisentrager quite obviously is off point. Hamden, unlike the German prisoners in Eisentrager, was both in U.S. custody and within the jurisdiction of the United States when he filed his habeas petition. Without any controlling precedent on point, a textualist and/or originalist would look to the Constitution and the founding-era history to decide the case. Roberts, of course, cannot be bothered to discover what Judge Alex Kozinski (who won't soon be mistaken for Brennan or Marshall) noted in Skokomish Indian Tribe v. United States; namely that "treaties constitute the `supreme Law of the Land'...and they have occasionally been found to provide rights of action for equitable relief against non-contracting parties." Indeed, in United States v. Winans, the Supreme Court held that a treaty between the United States and certain Indian tribes could be applied against private citizens operating under a state license. The conclusion is obvious, but I won't leave it unstated: if treaties can give rise to judicially-enforceable rights against third-party non-signatories, then a fortiorari treaties must also be able to create such rights against a party that actually signed the treaty.
But even worse than its unnecessarily dismissive attitude toward the Geneva Conventions is the panel's fervent desire to bend over backwards rubber-stamping every power that Bush's Justice Department lawyers claimed for the executive branch. Most glaringly, the panel noted that, even if the Geneva Conventions did create individual rights capable of judicial enforcement, Hamden would nonetheless be unable to receive relief because "President Bush determined" by executive fiat, that the Geneva Conventions do not apply to al Qaeda "enemy combatants." Similarly, the D.C. Circuit opined that a congressional resolution passed in the aftermath of September 11 and authorizing the President "to use all necessary and appropriate force" against those responsible, directly or indirectly, for 9/11 permitted the President, without any further judicial or congressional oversight, to compose military tribunals without any due process or witness confrontation protections in order to try anyone Bush thought ought to be tried in front of such a military tribunal. To again quote Professor Gordon, the panel's decision means, in theory, that the President "may torture, murder or even commit genocide with impunity."
The point vis-à-vis Roberts? His jurisprudence seems less guided by text and history than by affinity with the right-wing's royalist aspirations, and his views on the expansiveness of executive power should worry anyone concerned with the abuses of the Bush Administration regarding prisoners in Afghanistan, Iraq, Guantanamo, and elsewhere.
The Right to Privacy and the Ninth Amendment
Everyone is of course aware of Judge Roberts's dismissive remarks about the "so-called right to privacy" and the briefs he wrote while in the employ of the Reagan Administration urging that Roe v. Wade be overturned. Like Judge Robert Bork, who took dead aim at Griswold v. Connecticut and Roe, Roberts appears to be of the view that the cases recognizing a right to privacy are a form of judicial lawmaking that undermines the constitutional system set up by the Framers. In that system, judges do not stray from the strict limits of their role as interpreters of the constitutional text, and they certainly do not announce "rights" that are not specifically enumerated in the Constitution and which are based on their own personal preferences and views of what is right or just.
The preceding wingnut fantasy regarding the judiciary, however, bears no reasonable relationship to either the actual text of the Constitution or the understandings of the founding era. Most obviously, we have the Ninth Amendment, which states:
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
It seems simple enough...the fact that certain rights are specified in the Bill of Rights or elsewhere in the Constitution does not mean that other rights not specifically mentioned in the document do not exist. The fact that the Court in Griswold (and more straightforwardly, Justice Goldberg's concurrence in Griswold) relied on the 9th Amendment would thus seem to be unobjectionable. But to judges like Bork and Roberts, it is tantamount to high treason. Unfortunately for Bork and Roberts, it's not just the text of the Constitution that's against them, but history and precedent as well.
We start with Justice Chase's opinion in Calder v. Bull:
I cannot subscribe to the omnipotence of a State Legislature, or that it is absolute and without control; although its authority should not be expressly restrained by the Constitution, or fundamental law, of the State. The people of the United States erected their Constitutions, or forms of government, to establish justice, to promote the general welfare, to secure the blessings of liberty; and to protect their persons and property from violence. The purposes for which men enter into society will determine the nature and terms of the social compact; and as they are the foundation of the legislative power, they will decide what are the proper objects of it: The nature, and ends of legislative power will limit the exercise of it.
The Court again recognized the existence of unenumerated, fundamental rights in Citizens Savings & Loan Ass'n v. City of Topeka:
There are limitations on [governmental] power which grow out of the essential nature of all free governments. Implied reservations of individual rights, without which the social compact could not exist, and which are respected by all governments entitled to the name. No court, for instance, would hesitate to declare void a statute which enacted that A. and B. who were husband and wife to each other should be so no longer, but that A. should thereafter be the husband of C., and B. the wife of D. Or which should enact that the homestead now owned by A. should no longer be his, but should henceforth be the property of B.
Nor are Bork and Roberts led astray on the history supporting judicial acknowledgement of unenumerated rights simply because only a few decisions ever brought the issue up prior to Griswold. Justice Story, recognized by most, if not all, legal scholars as the leading commentator on the early federal judiciary, noted that:
Whether, indeed, independently of the constitution of the United States, the nature of republican and free governments does not necessarily impose some restraints upon the legislative power, has been much discussed. It seems to be the general opinion, fortified by a strong current of judicial opinion, that since the American revolution no state government can be presumed to possess the trancendental [sic] sovereignty to take away vested rights of property; to take the property of A. and transfer it to B. by a mere legislative act. A government can scarcely be deemed to be free, where the rights of property are left solely dependent upon a legislative body, without any restraint. The fundamental maxims of a free government seem to require, that the rights of personal liberty, and private property should be held sacred. At least, no court of justice, in this country, would be warranted in assuming, that any state legislature possessed a power to violate and disregard them; or that such a power, so repugnant to the common principles of justice and civil liberty, lurked under any general grant of legislative authority, or ought to be implied from any general expression of the will of the people, in the usual forms of the constitutional delegation of power. The people ought not to be presumed to part with rights, so vital to their security and well-being, without very strong, and positive declarations to that effect.
Roberts' facile logic that since "right to privacy" doesn't appear in the Constitution no such right exists is completely belied by James Madison's introduction of the Ninth Amendment in Congress:
It has been objected also against a bill of rights, that, by enumerating particular exceptions to the grant of power, it would disparage those rights which were not placed in that enumeration; and it might follow by implication, that those rights which were not singled out, were intended to be assigned into the hands of the General Government, and were consequently insecure. This is one of the most plausible arguments I have ever heard urged against the admission of a bill of rights into this system; but, I conceive, that it may be guarded against. I have attempted it, as gentlemen may see by turning to the last clause of the fourth resolution [the Ninth Amendment].
Perhaps in light of the strong historical record, even Instapundit Glenn Reynolds is "a big Ninth Amendment fan. I don't agree...that the Ninth Amendment poses a problem for strict constructionists. It only poses a problem for intellectually dishonest strict constructionists of the Robert Bork variety." For anyone who's interested, Professor Reynolds has an amusing takedown of Bork's anti-Griswold stance available here. Reynolds also points out in a different article that the "penumbral reasoning" used by Justice Douglas in Griswold and so eagerly lambasted by Roberts and other right-wing jurists, is actually quite common throughout our jurisprudence. From standing, to 11th Amendment sovereign immunity, the right is plenty comfortable with stepping outside of text and history (when it suits them). Roberts is no different, and is, at least on the question of privacy, overtly Borkian in his hypocrisy. Roberts' disdain for the "so-called" right to privacy exposes as clearly as anything could that he is not a careful jurist, but a committed ideologue.
Stay tuned for Part II: The Commerce Clause and Civil Rights.